San Antonio daily light. [volume] (San Antonio, Tex.) 1886-1907, 1887-02-08
A PECULIAR PHASE OF BURGLARY.
What Judge Hurt In the Court OF Ap
peals Says on the Niederluck
Gaze,

What Judge Hurt in the Court of Ap.
peals Saws on the Niederluck
Case.
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'"use nuite ueo'o'on :" 'ne ooul' VI
appeals In the case OF w. Neiderluck,
convicted OF burglarizing Tom Wings
restaprsnt IN Uopston street "a nm i'm.
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po''ah' one 'nas'hucn US " nsnuies
knotty point OF law not generally known
or understood. At the trial, the prison.
quash the Indictment on the ground
tended to be stolen was given. Judge
Noonan overruled the motion, and the
court confirms it, but Il reverses and re.
mands the case upon other important
errors In Judge Noonan's charge:
In his Judgment Judge Hurt says:
The prosecuting witness, one Tom
Wing, OF San Antonio; and one Levy and
one Hyatt were two domestic servants
In his employ, they sleeping, on the
night Of the burglary, on bed on the
back gallery OF the premises. The front
door OF the house was locked and the
back door closed and latched. The latch,
however, could be easily raised from
the outside through an aperture. About
2 O'Clock Of the night OF the burglary,
according to the record, two men (of
whom appellant was one) went up the
back steps, and upon this Levy arose
from the bed, and, after shaking Hyatt,
his bed fellow, as II to arouse him, went
into the house through the back door,
the two men following him. 1t Is
plain from the record that Hyatt had no
share In the burglary, and equally plain
that there was conspiracy between
Levy and the two who entered the house
with him. Ii should be borne constant
ly In mind that Levy occupied the rela-
tion OF servant to Wing, and that 1t was
he who lifted the latch and led the way
into the house. The charge Of the court
hinged the appellants guilt upon an en-
try effected by fraud, ignoring force al
together. To warrant conviction upon
a charge OF burglarious entry effected
by fraud, the fraud or deceit must be
practioed upon the occupant, and must
be the means used to induce him to give
Abundance. Here authorities are cited
In support OF this opinion.
Under the statute, II the entry Is by
fraudulent trick or device, whether
practiced upon the occupant or ser
want authorized to give entry, IL would
be burglarous. 1t Is plain that the ser
want Levy, was not induced to open the
door by fraud or deceit; that he was not
the dupe, but the willing coadjutor OF
his fellow-conspirators. And, also, that
the entry was not effected by the exer-
else OF similar arts upon Wing, the Occu-
pant and owner. This being so, the
court below erred in instructing the
jury upon case made by that ohsrac-
ter OF evidence. and for this reason
new trial should have been granted.
The statute provides that In order to
convict servant OF burglariOus entry
into the premises Of his employer,
the breaking must be actual, and
not constructive. From this IL may be
argued that since Levy, the servant, did
not enter by an actnal breaking, he can
not be convicted; and of consequence,
that his associates can not This im-
munity, however, given by the law to
Levy as a result of his relation us ser
want, would not extend to his associates,
since his constructive breaking would,
II committed by a person other than
servant, be burglarious; and Levy's
breaking, being 10 pursuance Of COM
mon design, would be burglarious in his
oonfederates, even though not punish